Periodic updates on developments in disability law and related fields.

Friday, October 28, 2011

Richard Ford's False Choice

Richard Ford is one of the most interesting and important scholars of civil rights and antidiscrimination law these days. Though I don't always agree with him, his work is required reading, and I have learned much from it. Ford's oped today in the Times, which promotes his new book, is smart and provocative as always, and I commend it to both of my readers.

That said, I have some qualms about Ford's argument, which I can highlight by talking about the one place in the oped where he discusses disability issues:

Similarly, civil rights intended to help profoundly disabled students don’t work well in cases involving mild learning and emotional disabilities that even experts can’t distinguish from garden-variety eccentricity or poor concentration. As a result poor and minority children tend to be tracked into dead-end remedial or special education classes, while children with similar conditions but wealthier and savvier parents receive one-on-one instruction, immunity from discipline and sometimes even private school paid for at public expense.

To the extent that Ford is saying that group-based civil rights laws are insufficient to solve these problems, I am in substantial agreement. Two of the major claims of my book about the disability rights movement are that (1) civil rights laws are insufficient to achieve disability rights goals, and (2) people with disabilities benefit when disability rights are framed in universal terms that do not draw lines between people with and without disabilities. (See also this article of mine, which emphasizes the limits of antidiscrimination law as a tool of achieving workplace equality.) And to the extent that Ford is criticizing particular aspects of the scheme Congress and the courts have developed for enforcing the rights of schoolchildren with disabilities, I have sympathy as well. My chapter of this book raised equity and other concerns with the IDEA's private-school reimbursement rule, for example, though I think the matter is more complicated than one could fully acknowledge in an oped.

But the tone and much of the content of Ford's oped suggests a stronger thesis -- that civil rights law is not just limited in what it can achieve but is actually counterproductive, in part because there is a fundamental tension in trying to achieve group goals through individual rights. I get the argument but don't find a claim of perverse effects here especially persuasive. Ford is clearly right that many "poor and minority children tend to be tracked into dead-end remedial or special education classes." But the relevant question is whether the civil rights laws have helped alleviate this problem, have helped exacerbate this problem, or have been irrelevant to it. Based on my understanding of the empirical evidence, and my observations about how the world works, I find any claim that the civil rights laws have made these matters worse simply implausible; to the contrary, I think the most plausible story is that the civil rights laws have made these matters better and continue to achieve important gains for many people who would otherwise be disadvantaged.

The problem of poor and minority children being tracked and otherwise disadvantaged, while "richer and savvier parents" obtain special benefits for their children, really has nothing to do with the civil rights laws. Rather, it's a consequence of a number of broader factors: the lingering effects of old patterns of segregation; the fact that richer parents have, as a practical matter, a choice of what schools their kids attend (because they can move to another locality or pay for private school), while poorer parents, as a practical matter, don't; and the highly bureaucratic and non-responsive organization of many school districts, which means that parents with more time, money, and education will be remarkably more successful in advocating for their children than those with less. Moving away from civil rights laws won't change these facts, and they will create equity problems with non-civil-rights-based school reforms as well.

In the end, I think Ford presents a false choice. We can recognize the limits of civil rights law, and the need to adopt interventions that are more structural and universalist, without slighting both the historical and continuing importance of civil rights law.

1 Comments:

Isn't there more agreement between you and Ford than it seems? I understand you both claim that rights are theoretically limited to foster the systemic goals of discrimination law. And I believe there is nothing in the "essence" of rights to conceive them as adversarial, individual and restorative.

(I write a thesis on equality as accommodation of differences, I would have much more to say, but this is barely the place !)